USCIS still Accepting FY 2010 H-1B Petition Filings

As of May 22, 2009, approximately 45,700 H-1B applications have been filed, thus with filings below the 65,000 mandated limit the USCIS (“U.S. Citizenship and Immigration Services”) will continue to accept cap-subject petitions for FY2010 (commences October 1, 2009). Further, approximately 20,000 petitions qualifying for the advanced degree (foreign workers with a Master's or higher level degree from a U.S. academic institution) cap exemption have already been filed, but the USCIS is still accepting H-1B cases because experience has shown that not all received petitions are approvable.

For cases that were filed under premium processing during the initial five-day filing window (April 1-7), the 15-day premium processing began April 7. For cases filed after April 7, the 15 day turnaround will begin once the USCIS physically receives the petition.

This is the first time in recent years that the cap has not been met during the first week of filings, which can be attributed to various factors around the recession such as layoffs / job cuts and hiring restrictions placed on TARP (“Troubled Assets Relief Program”) companies receiving stimulus assistance (cannot hire H-1B for 2 years). However, this could be an opportunity for companies to re-think its approach to H-1B usage. According to Robert Hoffman, co-chair of Compete America, commented that “many of the applications [this year] will be for employees who are currently working but were denied visas in previous lotteries,” those that may be in the OPT (“Optional Practical Training”) gap between a student visa and an H-1B (BNET, April 20, 2009).

DOL Asserts H-1B Employee Entitled to Unpaid Wages

On May 6, 2009, the U.S. Department of Labor (“DOL”) found an H-1B employer, Itek Consulting, Inc. liable for back wages for periods of time when the H-1B employee was in a nonproductive status without pay due to an unavailability of work or lack of the employee’s license or permit.

The fact that employers are liable for wages during periods of nonproductive employment has been well established; however,   Itek's was held liable for having the common misunderstanding that an H-1B worker cannot work and get paid while waiting for the issuance of an Social Security number (“SSN”). 

DOL stated that there are only three exceptions when an employer is not liable for back wages during a nonproductive status:

• The worker is in nonproductive status due to circumstances unrelated to work (in other words, a voluntary request by the H1B employee for personal reasons)

• The H-1B worker is made incapable of working

• The H-1B worker has been properly terminated

DOL noted that the H-1B employee’s lack of SSN did not meet any of these three exceptions, as an employee does not need a SSN to begin work.  The Social Security Administration and Internal Revenue Service make it clear that an H-1B worker only needs to evidence that he applied for a number.  Thus, DOL ordered Itek to pay back wages to its H-1B worker, concluding that the H-1B worker’s lack of a SSN did not excuse the employer’s wage obligation. 

Durbin-Grassley Bill Seeks to Add Restrictions to H-1B and L-1 Programs

On April 23, 2009, Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) introduced the H-1B and L-1 Visa Reform Act in Congress, a bill similar to one previously presented to Congress.  If the bill is passed it will increase employers’ obligations when sponsoring foreign nationals for H-1 and L-1 status, making it more difficult for employers to obtain H-1B and L-1 visas.

Highlights of the bill include the following:

• Requires employers seeking to hire H-1B workers to make a good faith attempt to recruit qualified American workers.  The bill would also prohibit employers from displacing a U.S. worker with an H-1B worker 180 days before and after the filing of an H-1B petition
   

• Increases H-1B and L-1 wage requirements, preventing employers from paying entry level wages to H and L workers
   

• Restricts employers with at least 50 employees from filing a new H-1B petition if H and L employees exceed 50% of their workforce
   

• Restricts employers from placing H and L workers off-site unless the employers could obtain a waiver from the U.S. DOL
   

• Requires employers to recruit on the internet for the H-1B position and would prohibit employers from running “H-1B only” advertisements
   

• Requires employers to submit IRS wage and tax statements for the H-1B workers to the DOL
   

• Expands the DOL’s discretion to review LCA’s for fraud or misrepresentation
   

• Requires the Department of Homeland Security (“DHS”), within six months of the bill’s enactment, to report to Congress with an assessment of safeguards against L-1 blanket fraud and abuse
   

• Allows the DHS to conduct random audits of H and L employers and would require the DHS to audit at least 1% of all H-1B employers.  The bill would also require the DHS to audit employers with more than 100 employees that have at least 15% H-1B workforce
   

• Increases employer penalties for violations and material misrepresentations

Read the complete Durbin-Grassley bill

The Durbin-Grassley bill is a highly controversial piece of immigration reform. The bill reflects a growing concern that foreign workers are taking American jobs.  In response, Bill Gates, the Chairman of Microsoft, argues that “for every H-1B holder that technology companies hire, five additional jobs are created around that person" (WSJ, March 31, 2009). Further, this bill may also discourage U.S. employers from hiring foreign talent, which may ultimately decrease the international competitiveness of U.S. companies.  

To keep up with the Durbin-Grassley bill and any other developments relative to the pending immigration reform, subscribe to VISANOW’s CIR Newsletter to receive monthly updates.

OFLC Buying More Transition Time with iCERT Portal for H1-B Submissions

The OFLC (“Office of Foreign Labor Certification”) originally launched the iCERT portal on April 15, 2009 as way to integrate the current H-1B (ETA 9035) and PERM (ETA 9089) electronic application capabilities, with the intension of deactivating the current LCA (“Labor Condition Application”) forms by May 15 (ETA 9035) and October 1 (ETA 9089).  However, on May 13, the US DOL “Department of Labor” announced that OFLC will retain the old LCA system through June 30 to give all users sufficient time to transition to the new iCERT system for H-1Bs.

Separate accounts in both systems had to be created with the current disconnect of the two systems. The main feature of iCERT solves this issue and employers, attorneys and agents can set up one account with multiple subaccounts, allowing information sharing throughout subsequent filings. Further benefits of iCERT include enhanced security measures that allow users to control input and application submission authorization.

Users are encouraged to familiarize themselves with the iCERT system as quickly as possible to allow adequate time to establish accounts and file LCAs using the new ETA 9035E. Currently, the old ETA 9089 LCA form will still be phased out on October 1.

All technical issues regarding iCERT should be addressed to the help desk: OFLC.Portal@dol.gov.

E-Verify Registration for Federal Contractors Extended Again

Previously reported in January, legislation stemming from the Bush Administration, imposed requirements that U.S. employers who are acting as federal contractors / subcontractors are required to use E-Verify to confirm employment eligibility for its employees, regardless of citizenship. While the Obama administration supports the E-Verify program, the implementation deadline has now been delayed numerous times since its inception – January 15, February 20, May 21 and will now be extended until June 30.

An Internet-based system managed by the USCIS, E-Verify electronically determines employment eligibility of new hires and the validity of their Social Security numbers quickly. The federal contractor requirement to use E-Verify was stipulated to ensure that the government is solely collaborating with a legal workforce.

E-Verify is mandatory for federal contractors with projects exceeding $100,000 and for sub-contractors with projects exceeding $3,000, but federal contractors are not allowed to use the system until the June 30 implementation to verify work authorization and they have been awarded a government contract, including the FAR (“Federal Acquisition Regulation”) E-Verify Clause.

The provisions for employers who are awarded federal contracts starting June 30 include:

• Must enroll with E-Verify within 30 days of any government contract award
   

• Required to initiate verification queries within 90 days of enrollment for all (not just new hires) employees who are working on the contract

With controversy surrounding the E-Verify system since its establishment, the extension will not only allow contractors and subcontractors more time to become acclimated to the new process, but also additional time for the government to review the terms of the policy and impact before mandating for federal contractors and subcontractors.

June 2009 Visa Bulletin

The June 2009 Visa Bulletin remains totally unchanged from May except for the four-year retrogression (when previously current dates on the bulletin go backwards and become unavailable) of priority dates for Indian nationals in the Employment-Based (“EB”) second category (members of the professions holding advanced degrees or persons of exceptional ability).

The cut-off date for Indian nationals in that category has experienced a dramatic four-year retrogression from February 15, 2004, to January 1, 2000, and is due to the overwhelming demand, and limited supply, of immigrant visas for Indian nationals.

Regarding the EB-3 (skilled workers, professionals, and other workers), immigrant visas for this category is still completely unavailable and unfortunately, we expect this to be the case until the start of the next fiscal year October 1, 2009.

EB Visa Bulletin for June 2009

Legend

• C: Current as there is no waiting period necessary to file the I-485

• U: Unavailable as visa supply has been exhausted for the remainder of fiscal year

• Date indicated: Cut-off date that indicates a backlog; if the priority date (date the labor certification or I-140 was filed, depending on the type of case) is BEFORE date listed, the I-485 can be filed

EB Preferences

Global Immigration News
 

How to Develop your Global Immigration Action Plan

According to the Global Relocation Trends report from Brookfield Global Relocation Services, optimism surrounding the global workforce and expatriation remains strong into 2009 despite of the global recession. “68 percent of HR executives expect an increase in the future growth of the general expat population (Brookfield, 2009).” 

With the continuing importance and growth of the global workforce, it is essential to know that successfully placing an expatriate abroad begins at the outset of the global immigration process.  You can be prepared and increase your global placement success by following the three-step Global Immigration Action Plan:

Step 1: Address the pertinent details of the assignment early

• What is the start date and duration of the assignment

• Where will the assignee be paid (home / host country)?

• Is the company in host country registered with the immigration authorities?

• What is the legal name and address of company in the host country?

• What is the relationship between home and host country?

Step 2: Collect the right information
While the documentation required for specific countries will vary as dictated by the host country, the standard required documents that must be present include:

• Original vital records (marriage and birth certificates

• Passports for each person with ample validity

• Curriculum Vitae/resume for the assigne

• Copy of degrees or other educational/professional credentials

Step 3: Contact the right people

• Confirm the assignment details with the host HR or host project manager

• Initiate and open your global case with VISANOW, recently having successfully launched its Global Immigration Services, to help streamline all of your international visa process needs

Regulation Change in Switzerland for EU/EFTA Nationals on Assignment

For EU (“European Union”) / EFTA (“European Free Trade Association”) nationals, who are on an assignment for more than 90 days and are not locally employed in Switzerland, Swiss regulations have changed and are immediately in effect.

Filing a work and residence application after arrival in Switzerland will no longer be possible in various cantons (states of Switzerland) to legally start working. A work and residence application needs to be filed prior to arrival in Switzerland. The application must be filed at least 2 weeks before a national’s anticipated employment start date in Switzerland.

The required documents for the application are:

• Copy of valid passport

• Copy of the assignment contract listing the place of work, assignment duties and the reason for their assignment

Since, not all cantons have officially adopted the legislature and altered their practice, currently each case has to be reviewed. Depending on the canton the place of work is located in, additional documents may be requested.

It is also important to be aware that there will probably be additional regulation changes in the next few weeks. Lastly, political discussions and debates regarding EU and EFTA foreign national quotas in Switzerland have begun again.

Inter-Company Transfer Visa Changes in Australia

Under the Subclass 457 Standard Business Sponsorship (“SBS”), inter-company transfer visa, the Australian Standard Classification of Occupations (“ASCO”) 5-7 have been eliminated and can no longer be utilized.

An application for a Subclass 457 visa under SBS must now be nominated for an activity which corresponds with a specified occupation under the ASCO other than 5-7. Further, the position must meet the minimum skill level requirement for the visa. 

Contact VISANOW’s Global Immigration Team to ensure your nominated position matches the ASCO list.

Learn more regarding the changes:  Australia Government Department of Immigration and Citizenship

VISANOW News
 

Survey Shows Optimism regarding Continued Hiring of Foreign Nationals 

VISANOW recently conducted a webinar in conjunction with HR.com, entitled “Laying off foreign workers.” Fiona McEntee, one of VISANOW’s attorneys, presented on the issues that employers and foreign nationals need to be aware of when a reduction in workforce occurs. Further, McEntee polled the attendees to gauge current and future foreign national hiring trends.

Responses from 120 of the webinar attendees showed that recession notwithstanding, 53% are still hiring or plan to hire foreign nationals.

To view the webinar, please click here for the complete presentation and free copies of the guides What Employers Need to Know about Immigration Issues Related to Layoffs of Foreign Employees and Answers to FAQs from Foreign Employees Affected by Layoffs.

VISANOW appreciates your input and will give away $10 Starbucks gift cards to five lucky respondents. Email news@visanow.com and be sure to include your mailing address in your response so you can receive your free Java!